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Music Without Borders by Stephanie Taylor

By Stephanie R. Taylor, Esq. with the assistance of Katie Garro McCain, Esq.
*This article first ran in the August 2014 Nashville Bar Journal

I grew up on a small, picturesque farm in rural South Dakota.  I loved all types of music, and as an aspiring fiddle player and violinist, I was always looking for musical inspiration.  Needless to say, large music tours didn’t typically route through my hometown.  As a result, radio was my only means of musical discovery.

In recent years, technology has opened doors to musical discovery in a variety of ways.  One significant change is that music fans are able to stream live audiovisual performances of concerts from their home computer or mobile device and view those concerts from nearly anywhere in the world.  Streaming technology has made it possible for artists and venues to access and connect with music fans throughout the world in an authentic way.  This technology is used locally by Music City Roots and has been embraced by brands as prominent as the Metropolitan Opera.  These venues are now able to connect with fans at an international level while building their brands. While this technology will never replace the live concert experience, it will undoubtedly connect music fans to artists and venues in a way that was previously not possible.  Of course, with the advent of technology comes the challenge of complying with copyright law.  This article analyzes the copyright law issues that impact the various individuals and companies whose rights are impacted by streaming technology.

Copyright Basics

In order to understand the rights impacted by live video streaming of concerts, it is important to begin with an overview of copyright law as it relates to the applicable rightsholders.

1. The Musical Work Copyright

In every recording of music, there are two separate and distinct copyrights involved.  The first is the “musical work” copyright.  While the U.S. Copyright Act (the “Act”) does not define “musical work,” a musical work is understood to be the musical composition or song, including the words and instrumental components of that song.[i]  The authors of musical works are the songwriters or composers.  In many instances, a musical work author transfers or assigns ownership of the musical work copyright to a third party music publisher.  In other instances, songwriters retain ownership of their musical work copyrights and become their own music publisher.

2. The Sound Recording Copyright

The second type of copyright is the “sound recording” copyright.  Sound recordings are defined in section 101 of The Act as the “work(s) that result from the fixation of a series of musical, spoken, or other sounds.”[2]  Put more simply, a sound recording is the audio recording of the underlying musical work. The authors of a sound recording are the performers whose performance is recorded.[3]  However, if the recording artist is signed to a recording agreement, the record label will own the sound recording copyright.  In some instances, recording artists may act as their own record label, retaining ownership of their sound recording copyright.

3. The Motion Picture Copyright

A third copyright exists when a concert is recorded in video format because the video producers are creating a “motion picture” which is defined in section 101 of The Act as an audiovisual work, “consisting of a series of related images…together with accompanying sounds, if any.”[4]  As a result, the video producers are the authors and owners of the motion picture copyright.[5]  If any person or entity other than the video producer wishes to own copyright in the audiovisual content (i.e. the venue, artist, or record label), then that person or entity should enter into a written work for hire agreement with the video producer prior to the live stream.[6]  The party who desires to own the motion picture copyright may also acquire those rights through a written assignment of copyright, but a work for hire agreement is typically the preferred method of ownership.

The existence of these three distinct copyrights means that there may be multiple rightsholders whenever a concert is streamed live online.  As a result, securing the necessary rights and clearances may be a challenge.

The Right to Stream a Musical Work

One of the exclusive rights held by a music publisher is the right to publicly perform the musical work. A live stream of a concert is an example of a public performance because it is a transmission of a performance to members of the public capable of receiving that communication.[7]

Most music publishers have granted the licensing rights for public performances of musical works to ASCAP, BMI, and SESAC, entities known as Performance Rights Organizations or PROs.  As a result, the online streaming service must obtain a “new media” license from each of the three PROs in order to secure rights to stream live performances of the musical works online.[8]  The new media license is in addition to any licenses the venue has already obtained from the PROs for public performances of music at the venue.

Typically, when a musical work is used in timed synchronization with video images, the user must obtain an additional license from music publishers; this license is referred to as a synchronization (“synch”) license.[9]  Synch licenses can be expensive and time consuming to obtain.  This is because synch license fees are not set by statute.  Rather, synch fees are negotiated based on a variety of factors making the fees very unpredictable.  Additionally, it is possible for a single song to have multiple songwriters and multiple music publishers, resulting in many hours of negotiations.  Fortunately, as long as the video of the concert performance is streamed live, no synch licenses will be required.  However, content creators and distributors need to be aware that synch licenses will be required if they desire to make videos of the musical performances available to the public after the live stream, whether in archived form, on their website, or for sale or distribution.[10]

The Right to the Artist’s Musical Performance

In addition to clearing the musical work, rights in the musical performance and resulting sound recording must also be cleared.  If a recording artist is signed to an exclusive recording agreement, the record label will typically own the exclusive rights to any recording of the artist’s musical performances during the term of such agreement.  As a result, any person or entity that wishes to capture the live performance of the artist and stream that performance online must secure permission from the record label.  The difficulty in clearing these rights depends on the promotional value the label sees in the live stream as well as the label’s comfort with the quality of such recorded performance.  Furthermore, even if a label grants permission for the live video stream, the label may nonetheless insist on ownership of the audiovisual content captured at the concert.  This clearance process may be significantly simplified when the artist is not signed to a label because the artist can grant all rights without label approval.

If the musicians performing with the artist are independent contractors as opposed to employees or members of the artist’s group, it will be necessary to obtain a “sideman/side musician” release.  Additionally, if the sideman is signed to an exclusive recording agreement, it will be necessary to obtain a release from sideman’s record label.

Additional Rights and Clearances

In addition to the rights and clearances discussed above, there are several other rights and clearances that one must obtain.

1. Location Release

Whenever filming at a venue, one must obtain a venue/location release from the owners and lessors of the applicable venue.  This release grants the right to record at that location and distribute the images captured at that location.  While filming at the venue, it is also important to be aware that if any copyrighted materials (i.e. posters) or trademarks (i.e. logos) appear in the background, a release from the owners of those copyrights or trademarks may also be required.

2. Name and Likeness Release

Recording artists are likely able to claim a right of publicity related to the use of his or her name, photograph, and likeness for commercial purposes.  As a result, it is important to include in any artist release the right to use the artist’s name, photograph, likeness, and biographical materials for marketing, promoting and other exploitations related to the concert/live stream.

3. Audience Release

Finally, if the audience members will be shown on camera, it is important to make the audience aware that they may be filmed.  In most instances it is not possible to obtain a written release from the audience members.  Nonetheless, best practices should include providing audience members notice at the time of ticket purchase, printing that notice on the ticket, and repeating that notice verbally to the audience prior to the taping.

Industry Response to Live Streaming

As mentioned above, live streaming will never replace the live concert experience.  Furthermore, it remains a fairly expensive technology requiring a skilled and experienced audio and audiovisual team to capture and distribute the content.  Additionally, some artists and labels remain apprehensive about a live stream of their performances because of concerns that these performances might not highlight the artist in the best possible light.  Nonetheless, live streaming of concerts creates an opportunity that might not otherwise be available, including: participation of overflow audiences to sold-out shows, interested fans exploring festivals and concerts in order to decide whether to attend in the future, and, as discussed above, a new and invaluable point of music discovery.

If I were still living in South Dakota today, my opportunities to engage in music would be vastly different.  I would have access to live video footage of concerts from around the world.  My point of musical discovery could be the weekly live stream of Music City Roots, or the price of admission to watch the Metropolitan Opera at a movie theatre.  This unprecedented access to live performances will enable artists and venues to connect with fans while building their brand in an authentic way while empowering fans to experience live music with fewer economic and geographic barriers.

 

[1] Marshall Leaffer, Understanding Copyright Law §3.18 (4th ed. 2005).

[2] 17 U.S.C.A. § 101 (West 2010).

[3] Authorship rights may also extend to the producer who is involved creatively in capturing those performances.

[4] 17 U.S.C.A § 101 (West 2010).

[5] A fourth copyright exists in that there will likely be software licenses and web server licenses that must grant the rights necessary for the live stream.  This article will not undertake that analysis, but those licenses will require careful analysis prior to streaming live concerts.  That analysis should consider the rights and obligations of those distributing the content as well as the rights of the rightsholders and the individual music fans consuming the content.

[6] Section 101 of the Act sets forth the formalities of creating a copyright that will be categorized as a work made for hire.

[7] 17 U.S.C.A. § 101 (West 2010).

[8] BMI issues a license through its Digital Licensing Department, and no longer refers to it as a new media license.

[9] Donald Passman, All You Need to Know About the Music Business 241 (7th ed. 2009).

[10] Increasingly, services like YouTube are negotiating blanket synchronization licenses with music publishers, which make the licensing process simpler and more cost effective.  However, those licenses are not within the scope of this article.

 
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